be deemed to be dead and he being dead person how could he appoint defendant as his
attorney---Burden was on defendant to prove that executant of power of attorney in his
favour was alive and that both power of attorney or sale-deed were valid
documents---Defendant failed to discharge the burden by whatever evidence---Suit was
rightly decreed by the Trial Court. 2001 M L D 725
Suit for cancellation of power of attorney followed by suit for cancellation of sale deed:--Omission
to sue for cancellation of sale-deed in earlier suit for cancellation of power of attorney-Bar contained
in O.II, R.2(2),C.P.C. - Applicability - Plaintiff claiming to be owner of suit property filed earlier suit
after coming to know about use of her bogus power of attorney by defendant to get possession of her
property from tenant -Plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants-Held,plaintiff had stated facts giving rise to
separate causes of action and had filed two separate suits warrant rejection of plaints under any principle
of law - Both suits were, thus, maintainable under Ss. 39 & 42 of Specific Relief Act, 1877 - Principles.
2004 MLD 227
Suit by tenant dispossessed from shop by force - Defendant (purchaser) Later on got
himself impleaded as party and produced sale-deed in his favour and possession note
showing handing over possession of shop by tenant - Tenant denied execution of any
document or handing over possession of ship to any of the defendants, and further prayed
for cancellation of documents being fraudulent - Contention ot defendants was that on
account of additional reliefs claimed through amended plaint, the suit had seized to be one
under S. 9 of Specific Relief Act, 1877 - Validity - Cause of grievance in such suit was
execution of alleged document of handing over vacant possession of shop by tenant to
landlord - Tenant had challenged such document as a fraudulent one - Such document
pertained to valuable rights of possession of tenant - Suit challenging such document on
ground of fraud instituted by tenant was maintainable. Sale of property by defendant owner
-Plaintiff would not be entitled to object to such sale Suit challenging validity of such sale and transfer of
property would not be maintainable. PLD 2003 Kar.436
Court Fee:-- Not necessary by implication for the plaintiff in suit for declaration to ask for
consequential relief as contemplated under S.39 of the Specific Relief Act, 1877--Where the
plaintiff has not asked for such consequential relief it cannot be held that he should have
made a prayer for such a relief but if a suit is framed as one for declaration that certain
document is void and is to be treated as one under S.39 of the Specific Relief Act, 1877,
and partly under S.42 of the Specific Relief Act, 1877, in such a case the plaintiff is liable to
pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870. 2002 C L C 1549
Suit for declaration and cancellation of agreement to sell was filed by the plaintiff alleging
the same to be void ab initio on the ground that it was not executed by her but was an act
of fraud--Defendant filed application under O. VII, R.11, C.P.C. for the rejection of plaint as
the plaintiff failed to fix ad valorem court-fee-- Application was dismissed by the Trial Court
but the Appellate Court allowed the same and directed the plaintiff to affix the court-fee
under S.7(iv)of the Court Fees Act, 1870—held, Where the plaintiff had asked for
declaration under S.42 and for cancellation of the document under S.39 of the Specific
Relief Act, 1877, she was liable to pay ad valorem court-fee under S.7(iv)of the Court Fees
Act, 1870-*Appellate Court had, rightly exercised its Jurisdiction vested in it under the law
and directed the plaintiff to affix the requisite court-fees. 2002 C L C 1549
Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 distinguished.
Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca
357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam
Hussain Shah v. Hidayatullah Khan PLD 1981 AJ&K 55; Mst. Nasim Akhtar v. Muhammad
Sabeel and others PLD 1991 AJ&K 66 and Muhammad Afzal Khan v. Muhammad Hayat
Khan and another 2000 MLD 1611 ref.
Sale of Joint Hindu property:-- Hindu Law defines ingredients of legal necessity on basis
of which Karta can dispose of Joint family property while S. 244, Hindu law makes
purchaser of Joint family property liable to prove that either there was legal necessity in
fact and that he made proper and bona fide enquiry as to the existence of such necessity
and did all that was reasonable to satisfy himself as to the existence of necessity. Appellate
Court erred in law in holding that plaintiffs were under burden to prove that defendant, had
not fulfilled conditions of legal necessity before purchase of property in question, as
contemplated by S. 243 of Hindu Law. Such finding was contrary to law as provisions of S.
244 of Hindu law are very clear whereunder purchaser was under burden to prove that he
was satisfied with requirements of S. 243 of Hindu law before entering into transaction with
Manager/Karta of Joint family property. Appellate Courts view that burden shifted to
plaintiffs was not in accordance with law. Trial Court on basis of material on record had
rightly concluded that defendants had failed to discharge their burden to satisfy
requirements of Sections 243 and 244 of Hindu law. Appellate Court thus, mis-applied,
mis-interpreted law and based its Judgment on misreading of evidence, therefore,
Judgment of Appellate Court was set aside, while Judgment and decree was restored and in
addition to that relief, sale deed was cancelled in terms of S. 39, Specific Relief Act, 1877
subject to payment of required Court fee within specified time. P.L.J.2000 Kar. 3.
40. What instrument may be partially cancelled
Where an instrument is evidence of different rights or different obligations, the Court may,
in a proper case, cancel it in part and allow it to stand for the residue.
Illustration
A draws a bill on B who endorses it to C, by whom it appears to be endorsed to D who
endorsed it to E. C‘s endorsement is forged. C is entitled to have such endorsement
cancelled leaving the bill to stand in other respects.
41. Power to require party for whom instrument is cancelled to make
compensation
On adjudging the cancellation of an instrument, the Court may require the party to whom
such relief is granted to make any compensation to the other which justice may require.
42. Discretion of Court as to declaration of status or right
Any person entitled to any legal character, or to any right as to any property, may institute
a suit against any person denying, or interested to deny, his title to such character or right,
and the Court may in its discretion make therein a declaration that he is so entitled, and
the plaintiff need not in such suit ask for any further relief:
Bar to such declaration. Provided that no Court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere declaration of title, omits to do
so.
Explanation. A trustee of property is a ‗person interested to deny‘ a title adverse to the
title of someone who is not in existence, and for whom, if in existence, he would be a
trustee.
Illustrations
(a) A is lawfully in possession of certain land. The inhabitants of a neighbouring village
claim a right of way across the land. A may sue for a declaration that they are not entitled
to the right so claimed.
(b) A bequeaths his property to B, C and D. ‗to be equally divided amongst all and each of
them, if living at the time of my death, then amongst their surviving children.‘ No such
children are in existence. In a suit against A‘s executor, the Court may declare whether B, C and 0 look the property absolutely, or
only for their lives and it may also declare the interests of the children before their rights
are vested.
(c) A covenants that if he should at any time he entitled to property exceeding one lakh of
rupees, he will settle it upon certain trusts. Before any such property accrues, or any
persons entitled under the trusts are ascertained he institutes a suit to obtain a declaration
that the covenant is void for uncertainty. The Court may make the declaration.
(d) A alienates to B property in which A has merely a life interest. The alienation is invalid
as against C. who is entitled as reversioner. The Court may, in a suit by C against A and B,
declare that C is so entitled.
(e) The widow of a sonless Hindu alienates part of the property of which she is in
possession as such. The person presumptively entitled to possess the property if he survive
her may. in a suit against the alienee obtain a declaration that the alienation was made
without legal necessity and was therefore void beyond the widow‘s lifetime.
(f) A Hindu widow in possession of property adopts a son to her deceased husband. The
person presumptively entitled to possession of the properly on her death without a son
may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.
(g) A is in possession of certain property. B, alleging that he is the owner of the property,
requires A to deliver it to him. A may obtain a declaration of his right to hold the properly
(h) A bequeaths property to B for his life, with remainder to B‘s wife and her children, if
any. by B. but it B dies without any wife or children, to C. B has a putative wife. D, and
children, but C denies that B and D were ever lawfully married. D and her children may. in
B‘s lifetime, institute a suit against C and obtain therein a declaration that they are truly
the wife and children of B.
Court Decisions
Suit for declaration---Plaintiff challenged registered sale-deed executed by their
deceased father in favour of defendants on the ground of same being forged---Trial Court
decreed the suit--*Appellate Court .set aside the decree and dismissed the suit, which
judgment was upheld by High Court in revision--Registered sale-deed had been executed
on 17-8-1963, whereas plaintiffs had filed suit on 17-3-1984---Such inaction on the part of
plaintiffs for about 20 years went a long way to attach sanctity to sale-deed---Possession of
respondents over disputed land amply supported the authenticity of registered sale-deed,
thus, non-examination of its attesting witnesses was not fatal---Plaintiffs' witness had
admitted that thumb-impression on sale-deed appeared to be that of their
father---Plaintiffs could not make mileage from report of finger expert as thumb-impression
of their father affixed on disputed power of attorney had been sent to finger expert for
comparison with his thumb-impression on sale-*deed---No concrete instance of misreading
or non-reading of evidence had been highlighted by plaintiffs.2002 S C M R 1391 Suit for
declaration, permanent injunction and possession by predecessors-in-interest of a lady
asserting therein that their mother was the owner in possession of the suit-land; that she
had never appointed anybody as here attorney and the alleged general power of attorney
was invalid and fictitious and mutation entered in respect of sale of the suit property were
not only illegal but mutations were attested by fraud as managed by the then Patwari -
Neither the scribe of the document of general power of attorney nor the Notary Public
alleged to have attested the same was examined to prove its genuineness - Very
foundations of this case was baseless and merited to fall down - When the sale mutations
in dispute were made, consolidation proceedings were pending, alienation and mutation, in
absence of registered sale-deed and also without obtaining necessary permission of the
Consolidation officer were illegal - Record showed that no such general power of attorney
was produced in the evidence before the Trial Court as such same being non-existent, the
question of its validity would not arise at all - An document that purported to create right,
title or interest in immovable property required compulsory registration - If the General
power of attorney was in existence, the same should have been compulsorily registered
and mere attestation of general power-of-attorney by the Notary Public was not sufficient
to meet the requirement of law. PLD 2003 SC 159 Suit for declaration assailing the
genuineness of general power of attorney in favour of defendant on the basis of which, he
had further alienated the suit-land to the other defendants - Land in question was owned
by the plaintiffs and allegedly defendant had sold the plots of said land in favour of other
defendants on the basis of a forged and fabricated document of power of attorney -
Plaintiffs, in order to discharge the burden about the forgery of the document, had
examined themselves and had denied that they had ever executed the document or
appeared before the sub-Registrar or Commission for registration - Defendants, in order to
prove the document to be genuine had examined Moharrer from the office of Sub Registrar,
Contention that order of trial court that Section 172 of Land Rev. Act created no bar to
filing of suit to challenge action of Rev. authorities, was not "maintainable. Function of Rev.
Authorities is to prepare Rev. record in light of evidence with regard to one's title or
interest, but civil rights such as claim of petitioner being daughter of Said Khan deceased,
have to be determine by civil court. Section 42 of Specific Relief Act confers a right upon an
aggrieved person to seek declaration from civil court with regard to his right or title. View
of trial court does not suffer from any legal infirmity. First proposition having been found against petitioner, suit is also not barred by principle of constructive res-Judicata.
P.L.J.1994 Pesh. 88 = PLD 1994 Pesh. 249.Dismissal of respondents suit against
cancellation of allotment in their, favour by two Courts below. High Court on consideration
of material on record decreed respondents, suit. Plot in question, was cancelled from the
name of appellant and was allotted in favour of respondent. Appellant had not invoked
Jurisdiction of any civil Court to get his title established or for redressal of his grievances
but kept on waiting for the result of litigation by respondents, thereby ignoring the fact
that he could not derive any benefit, in as much as, he was having no legal status after
cancellation of plot in question, from his name. Non-delivering of possession to respondent
after allotment, was of no consequence, in as much as, physical handing over of plot in
question, was subject to completion of certain formalities which could only be done by
concerned functionaries of District Allotment Committee. Lapse of the Department in not
handing over possession of plot in question, after completion of formalities could not be
equated to that of wilful default. High Court , thus, had rightly decreed respondents suit
and same could not be interfered with in exercise of appellant Jurisdiction. P.L.J.2001 SC
139 = P.L.J.2001 SC 443.
Averment in plaint to the effect that property in question was Evacuee Trust Property,
would by itself divest plaintiff of any interest or right therein. Plaintiff as Notified Officer
had very limited scope of Jurisdiction and could not claim to be custodian of all
Government lands and properties. Averments in plaint did not show any legal character or
right in plaintiff to maintain suit for declaration. Plaintiff, for maintaining any proceedings
for declaration in suit must show existence of statute or character conferred by law which
was wanting in suit. Plaint was thus, rejected for lack of legal character or status in plaintiff
to maintain suit for declaration, P.L.J.1997 Kar. 861 = 1997 MLD 2444.
Confiscation of property by Nawab of Dir in 1937 by way of punishment and expulsion of
predecessors of petitioners of charge of murder. Declaration by Govt. of N.W.F.P. to the
effect that disputed property was state property. Admittedly, suit land was situated within
limits off Malakand Agency and, therefore, it was neither state property of Dir nor could it
be confiscated by Ex-Nawab of Dir as he was devoid of territorial Jurisdiction. It was
ridiculous ,to assume that land was situated in District Dir. Learned District Judge was
Justified in reversing finding of 'learned trial Court on crucial issue as to, location of
disputed property. High Court was, therefore, right in not interfering with finding on
material question. P.L.J.1997 SC 1403 = 1997 SCMR 1620:
Declaration sought for under S.42 of Specific Relief Act, 1877, must relate to title or to any
legal character or to any right as to any propertySaid suit would fall under S.7(iv)of Court
Fees Act, 1870, read with Sched. II, Art.17(IIl) of said Act--Where specific relief claimed in
a declaratory suit was either surplusage or consequential relief same would flow from
original relief of declaration claimed in plaint and suit would thus fall under Sched. II,
Art.17(iii) of Court Fees Act, 1870, but if consequential relief was not outcome of original
declaratory relief then suit would fall out of ambit of abovesaid provisions of law--Plaintiff
in his suit had asked for a declaration to the effect that he was owner in possession of suit
land and had prayed for a further relief that gift deed and sale-deed were illegal and
ineffective on his right, said further relief would flow from declarationSaid suit would fall
under S.7(iv)of Court Fees Act, 1870 read with Sched. II, Art. 17(111) of the said Act.
2000 M L D 1611 Miss Nasim Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J &
K 66 ref.
Evidence brought on record clearly proved that petitioners/plaintiffs were in possession of
disputed land as tenants at will. Beside referring oral evidence, reference was also made to
relevant-Rev.-record-particularly-to,-Jamabdndi,-where petitioners/plaintiffs were recorded
as tenants at will in column of tenants as against column No. 3 whereas
respondents/defendants have been recorded as owners. Oral evidence brought on record
did not support contention of petitioners/plaintiffs that they were actually holding land in question as its owners. Contention that they had purchased property in question for
consideration is not borne out from any evidence. On contrary, mutation entered in respect
of alleged transaction was later on cancelled when objected to from other side. Petitioners
could not point out that there was bona fide transaction of sale and purchase between
parties as alleged in plaint. Petition being meritless is accordingly dismissed in limine.
P.L.J.1998 Lah. 894 = 1948 CLC 1423.
Execution of general power of attorney and mutation of sale challenged through suit for
declaration as being result of fraud mis-representation, collusiveness, without lawful
authority, illegal and ineffective on rights of plaintiffs. Plaintiffs suit .was'dismissed by Trial
Court while the same was decreed by Appellate Court. Validity. Execution of power of
attorney having been denied by plaintiff, burden to prove the same would shift to
defendant who had got benefit out of that document and was beneficiary of the same.
Alleged attorney was close relative of beneficiary of alleged sale. Person who had signed
receipt of loan as witness had admitted that the same was scribed by his clerk and that no
consideration/money was passed in his presence. Scribe of receipt also admitted that no
money was passed in his presence. Scribed though admitted to have written receipt of
money, yet he had not signed that document. One of two marginal witnesses having not
been produced, document in question, would not be deemed to have been proved in
accordance with Arts. 17 and 79 of Qanun-eShahadt Order, 1984. Marginal witnesses of
power, of attorney having not been produced execution of power of attorney was not
proved. Sale in question, on basis of invalid power of attorney was thus, without lawful
authority and mutation of sale on basis thereof, was illegal and void, P.L.J.2000 Lah. 343 =
2000 MLD 1117.
Whether relief of possession could be given by High Court. Respondent, throughout
proceedings, agitated that he was dispossessed from properties during pendency of
proceedings and that he should be put back in possession. Appellant was fully aware of
claim of respondent, regarding possession of suit properties. Omission to claim possession
specifically in suit, was a technical lapse. Learned Judge in Chambers was fully competent
to treat application under Section 151 C.P.C. as cross-objections in appeal of appellant.
Learned Judge in chambers rightly allowed amendment of plaint adding prayer for
possession, but legal implications were not taken into consideration by learned Judge in
chambers. As result of amendment, valuation pf suit went beyond Rs. 200,000/- and
appeal should have been heard by Division Bench. Appeal accepted and case remanded to
High Court for decision of appeal by Division Bench.-P.L.J.1994 SC 386 = 1994 SCMR 1555
= 1994 PSC 996.
It ..is clear from mutation of redemption of land that appellants have sold their land to
respondents and mortgage money was paid by respondents. Findings recorded by trial
court, were reversed by first appellate court for valid reasons. Primary relief sought by
appellants being of declaration, High Court has discretion to refuse relief in view of clear
provisions of Section 42 of Specific Relief Act even if case is proved. P.L.J.1995 Lak. 172 =
1995MLD 1042.
S. 53-A. of Transfer of Property Art, 1882 makes it clear that it applied only to transfer of
an immovable property made by a writing signed by the vendor himself or on his behalf.
Disputed land was already in possession of petitioner-defendant No. 2 being a mortgagee.
Defendants did not deny contents of relevant para No. 5 in this regard in written
statement. Petitioners-defendants raised no objection about form of suit Or same being
barred by law in written statement. So, suit of plaintiff is not hit by provisions ofS. 53-A of
Transfer of Property Act or S. 42 of Specific Relief Act.-P.L.J.1998 Lah. 939 = 1998 CLC
1104.
*Defendants who were cousins of plaintiff and were cultivating his land, on basis of forged
and fabricated agreement to sell and power of attorney in collusion with another defendant
got land owned by plaintiff mutated in their favour in absence of plaintiff---Plaintiff in his suit denied execution of agreement of sale in favour of defendants and execution of power
of attorney in favour of other defendant and sought declaration that said documents be
declared to be illegal and void and that plaintiff was owner of land in dispute and had not
sold land to the defendants---Suit was decreed by Trial Court, but on filing appeal
Appellate Court dismissed the suit---Validity---Power of attorney on basis of which land of
plaintiff was got mutated in names of defendants and execution of which was denied by
plaintiff, was not even produced on record and no explanation for the omission, was given
by defendants---Defendants had claimed that power of attorney being registered one was a
public document and its certified copy was admissible in evidence--Contention was repelled
because under Art.85(5) of Qanun-e-*Shahadat, 1984 only such registered document
could be a public document, execution whereof was not disputed, whereas plaintiff had
totally denied the execution of the power of attorney---No evidence whatsoever had been
led by defendants to prove proceedings of mutation---Appellate Court below was not
justified to hold that since mutation stood incorporated in Revenue Record same enjoyed a
presumption of correctness and need not be proved--*If mutation was incorporated in
Revenue Record, defendants claiming benefit thereunder were not absolved of their
obligation to prove the same as a fact---Judgment and decree passed by Appellate Court
being not based on any evidence and having been passed in. exercise of jurisdiction not
vesting in it, could not sustain---High Court set aside judgment of Appellate Court and
restored the judgment and decree of Trial Court in circumstances. 2001 C L C 155
Muhammad Ibrahim v. Mst. Basri and others 1988 SCMR 96; Muhammad and others v.
Sardul PLD 1965 Lah. (W.P.) 472; Abdul Majeed and 6 others v. M. Subhan and 2 others
1999 SCMR 1245 and Allah Dino and 2 others v. Muhammad Umar and others 1974 SCMR
411 ref.
Plaintiff challenged inheritance mutation of deceased claiming 3/4th share therefrom---Trial
Court decreed the suit---Appellate Court dismissed the suit, which judgment was upheld by
High Court in revision---Validity---Evidence adduced by plaintiff to prove that he was a
collateral of deceased was too deficient to establish his alleged relationship---Both
witnesses examined by plaintiff were strangers as the former about two years ago had
taken up residence in the village, where disputed land was situated, whereas the latter's
village was situated at a distance of 10/15 miles from plaintiff's- village---Plaintiff had not
examined any person having special knowledge about his relationship with
deceased--*Pedigree-table neither linked the plaintiff in any manner with deceased nor
same had been proved in accordance with law---Plaintiff's claim had not been established
on record---Impugned judgment did not warrant interference--* S. C. dismissed the
petition and refused to grant leave to appeal. 2002 S C M R 1355
Plaintiff challenged registered sale-deed executed by their deceased father in favour of
defendants on the ground of same being forged---Trial Court decreed the suit--*Appellate
Court .set aside the decree and dismissed the suit, which judgment was upheld by High
Court in revision---Validity---Registered sale-deed had been executed on 17-8-1963,
whereas plaintiffs had filed suit on 17-3-1984---Such inaction on the part of plaintiffs for
about 20 years went a long way to attach sanctity to sale-deed---Possession of
respondents over disputed land amply supported the authenticity of registered sale-deed,
thus, non-examination of its attesting witnesses was not fatal---Plaintiffs' witness had
admitted that thumb-impression on sale-deed appeared to be that of their
father---Plaintiffs could not make mileage from report of finger expert as thumb-impression
of their father affixed on disputed power of attorney had been sent to finger expert for
comparison with his thumb-impression on sale-*deed---No concrete instance of misreading
or non-reading of evidence had been highlighted by plaintiffs---Supreme Court dismissed
the petition and refused to grant leave to appeal. 2002 S C M R 1391
Revisional jurisdiction, exercise of---Suit was resisted by defendant on grounds that
identity of suit property was in dispute and that defendant had claimed title in respect of
suit property by virtue of inheritance and on basis .of will--*Validity---Full description of
suit. property had been given and identity of property had not been disputed by defendant
either before Trial Court or before Appellate Court---Such controversy could not be urged
at revisional stage---Defendant could not produce any document to prove his title in suit
property by virtue of inheritance or on basis; of alleged Will---Plaintiff on the contrary had
succeeded in establishing her title in property resting on registered
instrument---Presumption as to genuineness, .correctness and authenticity of registered
documents under Arts.85(5) & 129of Qanun-e-Shahadat, 1984 was not dispelled by
defendant and oral assertion was not sufficient to rebut registered documents produced by
plaintiff in proof of her title in respect of suit property---Suit for possession and declaration
was rightly decreed by Trial Court and Appellate Court---Concurrent findings of Courts
below could not be interfered with in revisional jurisdiction of High Court when no illegality
was pointed out in concurrent finding of Courts below. 2002 M L D 1397 Moinuddin Paracha
v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD
281 and Syed Akhtar Hussain Zaidi's case 1988 SCMR 753 ref.
Plaintiffs claimed ownership of land in question on the basis of agreement of sale executed
by predecessor-in-interest of defendants in favour of their father claiming that they
remained in possession of land as its owners after the death of their father---Said
agreement of sale had been challenged by defendants after about forty-two years of its
execution---Document was written on a stamp paper of rupee one of "Dogra Regime"
which contained no prima facie evidence of forgery, but appeared to be perfectly genuine
document---If a document which was more than thirty years' old had been produced from
proper custody, Court, under Art. 100 of Qanune-e-Shahadat, 1984 could presume the
same to be genuine---Agreement of sale, in circumstances, was rightly held genuine by
Courts below. 2001 M L D 493 Tikamdas and another v. Abdul Wali and 7 others PLD 1968
SC 241 and Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others 1999 MLR
824 ref.
Filing of application by Respondents Nos. 1 to 4 after closure of petitioners, evidence for
comparison of thumb impressions of petitioner with that of report of patwari on daily dairy
& mutation. Rejection order passed by trial court upheld in appeal. Constitutional petition.
Onus of issue proving transaction to be bona fide against lady plaintiffs who claimed to be
parda Nashin ladies is heavily on petitioner/defendant. If he was of view that those thumb
impressions were actually affixed by Respondents/plaintiffs, then he should have moved
application much earlier instead of waiting for stage of his evidence. Even otherwise, he
has not put any witness so far in witness box to put his own case by calling patwari and
Rev. officials, but had relied upon daily diary and sanctioned mutation respectively- Had it
been shown that thumb-impressions affixed thereon belonged to plaintiffs/respondents,
then question for comparison would have arisen. At this stage, when impression have
already been denied from very. beginning, petitioner/defendant cannot be allowed
premium over his adversary which would tantamount to creation of evidence instead of
examining evidence relied upon in list of reliance. Party cannot be allowed to come up with
piece-meal objections at. every stage of case which is yet pending in CJourt of competent
Jurisdiction awaiting final decision in accordance with law. Constitutional Jurisdiction in
such matters cannot be availed till case is finally decided. All interim orders, if passed to
prejudice of any party, would also merge in final Judgment and could be assailed in
accordance with law at appropriate stage in competent forum. P.L.J.1999 Lah. 1242.
Petitioner claiming title to land in question, on basis of inheritance. Petitioners suit on such
plea was dismissed by Courts below. Evidence produced by petitioner could not establish
that he was the son of propositus, the same rather established otherwise. Birth certificates
of children of petitioner relating to years 1963, 1966, 1971, 1974, 1979 and 1987 recorded
after the death of propositus by three different chowkidars showed parentage of petitioner
to be different than that claimed by him. Two Courts below had dismissed petitioner, claim
attorney---Burden was on defendant to prove that executant of power of attorney in his
favour was alive and that both power of attorney or sale-deed were valid
documents---Defendant failed to discharge the burden by whatever evidence---Suit was
rightly decreed by the Trial Court. 2001 M L D 725
Suit for cancellation of power of attorney followed by suit for cancellation of sale deed:--Omission
to sue for cancellation of sale-deed in earlier suit for cancellation of power of attorney-Bar contained
in O.II, R.2(2),C.P.C. - Applicability - Plaintiff claiming to be owner of suit property filed earlier suit
after coming to know about use of her bogus power of attorney by defendant to get possession of her
property from tenant -Plaintiff at the time of filing earlier suit had no knowledge that defendant had fraudulently conveyed her property to the other defendants-Held,plaintiff had stated facts giving rise to
separate causes of action and had filed two separate suits warrant rejection of plaints under any principle
of law - Both suits were, thus, maintainable under Ss. 39 & 42 of Specific Relief Act, 1877 - Principles.
2004 MLD 227
Suit by tenant dispossessed from shop by force - Defendant (purchaser) Later on got
himself impleaded as party and produced sale-deed in his favour and possession note
showing handing over possession of shop by tenant - Tenant denied execution of any
document or handing over possession of ship to any of the defendants, and further prayed
for cancellation of documents being fraudulent - Contention ot defendants was that on
account of additional reliefs claimed through amended plaint, the suit had seized to be one
under S. 9 of Specific Relief Act, 1877 - Validity - Cause of grievance in such suit was
execution of alleged document of handing over vacant possession of shop by tenant to
landlord - Tenant had challenged such document as a fraudulent one - Such document
pertained to valuable rights of possession of tenant - Suit challenging such document on
ground of fraud instituted by tenant was maintainable. Sale of property by defendant owner
-Plaintiff would not be entitled to object to such sale Suit challenging validity of such sale and transfer of
property would not be maintainable. PLD 2003 Kar.436
Court Fee:-- Not necessary by implication for the plaintiff in suit for declaration to ask for
consequential relief as contemplated under S.39 of the Specific Relief Act, 1877--Where the
plaintiff has not asked for such consequential relief it cannot be held that he should have
made a prayer for such a relief but if a suit is framed as one for declaration that certain
document is void and is to be treated as one under S.39 of the Specific Relief Act, 1877,
and partly under S.42 of the Specific Relief Act, 1877, in such a case the plaintiff is liable to
pay ad valorem court-fee under S.7(iv)of the Court Fees Act, 1870. 2002 C L C 1549
Suit for declaration and cancellation of agreement to sell was filed by the plaintiff alleging
the same to be void ab initio on the ground that it was not executed by her but was an act
of fraud--Defendant filed application under O. VII, R.11, C.P.C. for the rejection of plaint as
the plaintiff failed to fix ad valorem court-fee-- Application was dismissed by the Trial Court
but the Appellate Court allowed the same and directed the plaintiff to affix the court-fee
under S.7(iv)of the Court Fees Act, 1870—held, Where the plaintiff had asked for
declaration under S.42 and for cancellation of the document under S.39 of the Specific
Relief Act, 1877, she was liable to pay ad valorem court-fee under S.7(iv)of the Court Fees
Act, 1870-*Appellate Court had, rightly exercised its Jurisdiction vested in it under the law
and directed the plaintiff to affix the requisite court-fees. 2002 C L C 1549
Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 distinguished.
Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca
357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam
Hussain Shah v. Hidayatullah Khan PLD 1981 AJ&K 55; Mst. Nasim Akhtar v. Muhammad
Sabeel and others PLD 1991 AJ&K 66 and Muhammad Afzal Khan v. Muhammad Hayat
Khan and another 2000 MLD 1611 ref.
Sale of Joint Hindu property:-- Hindu Law defines ingredients of legal necessity on basis
of which Karta can dispose of Joint family property while S. 244, Hindu law makes
purchaser of Joint family property liable to prove that either there was legal necessity in
fact and that he made proper and bona fide enquiry as to the existence of such necessity
and did all that was reasonable to satisfy himself as to the existence of necessity. Appellate
Court erred in law in holding that plaintiffs were under burden to prove that defendant, had
not fulfilled conditions of legal necessity before purchase of property in question, as
contemplated by S. 243 of Hindu Law. Such finding was contrary to law as provisions of S.
244 of Hindu law are very clear whereunder purchaser was under burden to prove that he
was satisfied with requirements of S. 243 of Hindu law before entering into transaction with
Manager/Karta of Joint family property. Appellate Courts view that burden shifted to
plaintiffs was not in accordance with law. Trial Court on basis of material on record had
rightly concluded that defendants had failed to discharge their burden to satisfy
requirements of Sections 243 and 244 of Hindu law. Appellate Court thus, mis-applied,
mis-interpreted law and based its Judgment on misreading of evidence, therefore,
Judgment of Appellate Court was set aside, while Judgment and decree was restored and in
addition to that relief, sale deed was cancelled in terms of S. 39, Specific Relief Act, 1877
subject to payment of required Court fee within specified time. P.L.J.2000 Kar. 3.
40. What instrument may be partially cancelled
Where an instrument is evidence of different rights or different obligations, the Court may,
in a proper case, cancel it in part and allow it to stand for the residue.
Illustration
A draws a bill on B who endorses it to C, by whom it appears to be endorsed to D who
endorsed it to E. C‘s endorsement is forged. C is entitled to have such endorsement
cancelled leaving the bill to stand in other respects.
41. Power to require party for whom instrument is cancelled to make
compensation
On adjudging the cancellation of an instrument, the Court may require the party to whom
such relief is granted to make any compensation to the other which justice may require.
42. Discretion of Court as to declaration of status or right
Any person entitled to any legal character, or to any right as to any property, may institute
a suit against any person denying, or interested to deny, his title to such character or right,
and the Court may in its discretion make therein a declaration that he is so entitled, and
the plaintiff need not in such suit ask for any further relief:
Bar to such declaration. Provided that no Court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere declaration of title, omits to do
so.
Explanation. A trustee of property is a ‗person interested to deny‘ a title adverse to the
title of someone who is not in existence, and for whom, if in existence, he would be a
trustee.
Illustrations
(a) A is lawfully in possession of certain land. The inhabitants of a neighbouring village
claim a right of way across the land. A may sue for a declaration that they are not entitled
to the right so claimed.
(b) A bequeaths his property to B, C and D. ‗to be equally divided amongst all and each of
them, if living at the time of my death, then amongst their surviving children.‘ No such
children are in existence. In a suit against A‘s executor, the Court may declare whether B, C and 0 look the property absolutely, or
only for their lives and it may also declare the interests of the children before their rights
are vested.
(c) A covenants that if he should at any time he entitled to property exceeding one lakh of
rupees, he will settle it upon certain trusts. Before any such property accrues, or any
persons entitled under the trusts are ascertained he institutes a suit to obtain a declaration
that the covenant is void for uncertainty. The Court may make the declaration.
(d) A alienates to B property in which A has merely a life interest. The alienation is invalid
as against C. who is entitled as reversioner. The Court may, in a suit by C against A and B,
declare that C is so entitled.
(e) The widow of a sonless Hindu alienates part of the property of which she is in
possession as such. The person presumptively entitled to possess the property if he survive
her may. in a suit against the alienee obtain a declaration that the alienation was made
without legal necessity and was therefore void beyond the widow‘s lifetime.
(f) A Hindu widow in possession of property adopts a son to her deceased husband. The
person presumptively entitled to possession of the properly on her death without a son
may, in a suit against the adopted son, obtain a declaration that the adoption was invalid.
(g) A is in possession of certain property. B, alleging that he is the owner of the property,
requires A to deliver it to him. A may obtain a declaration of his right to hold the properly
(h) A bequeaths property to B for his life, with remainder to B‘s wife and her children, if
any. by B. but it B dies without any wife or children, to C. B has a putative wife. D, and
children, but C denies that B and D were ever lawfully married. D and her children may. in
B‘s lifetime, institute a suit against C and obtain therein a declaration that they are truly
the wife and children of B.
Court Decisions
Suit for declaration---Plaintiff challenged registered sale-deed executed by their
deceased father in favour of defendants on the ground of same being forged---Trial Court
decreed the suit--*Appellate Court .set aside the decree and dismissed the suit, which
judgment was upheld by High Court in revision--Registered sale-deed had been executed
on 17-8-1963, whereas plaintiffs had filed suit on 17-3-1984---Such inaction on the part of
plaintiffs for about 20 years went a long way to attach sanctity to sale-deed---Possession of
respondents over disputed land amply supported the authenticity of registered sale-deed,
thus, non-examination of its attesting witnesses was not fatal---Plaintiffs' witness had
admitted that thumb-impression on sale-deed appeared to be that of their
father---Plaintiffs could not make mileage from report of finger expert as thumb-impression
of their father affixed on disputed power of attorney had been sent to finger expert for
comparison with his thumb-impression on sale-*deed---No concrete instance of misreading
or non-reading of evidence had been highlighted by plaintiffs.2002 S C M R 1391 Suit for
declaration, permanent injunction and possession by predecessors-in-interest of a lady
asserting therein that their mother was the owner in possession of the suit-land; that she
had never appointed anybody as here attorney and the alleged general power of attorney
was invalid and fictitious and mutation entered in respect of sale of the suit property were
not only illegal but mutations were attested by fraud as managed by the then Patwari -
Neither the scribe of the document of general power of attorney nor the Notary Public
alleged to have attested the same was examined to prove its genuineness - Very
foundations of this case was baseless and merited to fall down - When the sale mutations
in dispute were made, consolidation proceedings were pending, alienation and mutation, in
absence of registered sale-deed and also without obtaining necessary permission of the
Consolidation officer were illegal - Record showed that no such general power of attorney
was produced in the evidence before the Trial Court as such same being non-existent, the
question of its validity would not arise at all - An document that purported to create right,
title or interest in immovable property required compulsory registration - If the General
power of attorney was in existence, the same should have been compulsorily registered
and mere attestation of general power-of-attorney by the Notary Public was not sufficient
to meet the requirement of law. PLD 2003 SC 159 Suit for declaration assailing the
genuineness of general power of attorney in favour of defendant on the basis of which, he
had further alienated the suit-land to the other defendants - Land in question was owned
by the plaintiffs and allegedly defendant had sold the plots of said land in favour of other
defendants on the basis of a forged and fabricated document of power of attorney -
Plaintiffs, in order to discharge the burden about the forgery of the document, had
examined themselves and had denied that they had ever executed the document or
appeared before the sub-Registrar or Commission for registration - Defendants, in order to
prove the document to be genuine had examined Moharrer from the office of Sub Registrar,
who had simply brought the record of the sub-Registrar to depose that it had been registered in
the office-Local Commissioner,allegedly appointed by the Sub Registrar,in his cross-examination
had stated that he did not know the executant of the power of attorney personally; that he was taken to
the office of a property dealer, where some men and women were present and he reposing confidence in the
person who was allegedly made attorney through that document and considering those persons to be genuine,got the thumb-impressions of the executants on the power of attorney; that he did not see the identity
cards of all the executants, because all of them did not possess those cards, only three had the identity cards
that he did not go to thumb-impressions-Statement of the local Commissioner thus had not proved that the power of attorney had been executed by the plaintiffs and their signatures and thumb-impressions were affixed in the genuine proceedings by the local commission-None of the marginal witnesses had been
produced,who had identified the plaintiffs at the time of proceedings before the local commission-Defendants
had not even moved any application before the Court for seeking comparison of the thumb-impressions or
signatures of the plaintiffs through any Handwriting Expert/Fingerprint Expert,thus on the basis of such
evidence,the view of the Appellate court that the power of attorney had been duly proved was the result
of sheer misreading and non-reading of the record,resultantly the same was set aside by the High Court
in revision. PLD 2003 Lah. 576 Plaintiffs claim to ownership thereof,was resisted by defendants who claimed ownership of the same.Trial Court decreed plaintiffs suit while Appellate Court set aside Judgment
and decree of trial Court.Validity.Rev. record showed status of properties and rights of individual, thereon.
If disputed property was ever acquired by Irrigation Department as per its claim why it was not incorporated
in Rev. record and if it was so incorporated why relevant record was not produced in Court. Analysis
of evidence produced by plaintiffs inspired confidence, which would lead to irritable conclusion that plaintiffs
were owners of land in question.Demarcation proceedings were carried out three times in presence of senior
officers of Irrigation Department,whereto no objection was raised by representatives of Irrigation Department to demarcation proceedings,rather they agreed to correctness of those proceedings and put
their signatures under that report which was duly incorporated in Roznarricha Waqiat. Rev.record clearly proved claim of petitioners over land in, question. Appellate Court had failed to appreciation evidence placed on record in it true perspective, thus, its Judgment suffered from material illegality and was unsustainable.-P.L.J.1999 Lah.1340=1999 MLD 2612 = 1999 CLC 603.
Contention that order of trial court that Section 172 of Land Rev. Act created no bar to
filing of suit to challenge action of Rev. authorities, was not "maintainable. Function of Rev.
Authorities is to prepare Rev. record in light of evidence with regard to one's title or
interest, but civil rights such as claim of petitioner being daughter of Said Khan deceased,
have to be determine by civil court. Section 42 of Specific Relief Act confers a right upon an
aggrieved person to seek declaration from civil court with regard to his right or title. View
of trial court does not suffer from any legal infirmity. First proposition having been found against petitioner, suit is also not barred by principle of constructive res-Judicata.
P.L.J.1994 Pesh. 88 = PLD 1994 Pesh. 249.Dismissal of respondents suit against
cancellation of allotment in their, favour by two Courts below. High Court on consideration
of material on record decreed respondents, suit. Plot in question, was cancelled from the
name of appellant and was allotted in favour of respondent. Appellant had not invoked
Jurisdiction of any civil Court to get his title established or for redressal of his grievances
but kept on waiting for the result of litigation by respondents, thereby ignoring the fact
that he could not derive any benefit, in as much as, he was having no legal status after
cancellation of plot in question, from his name. Non-delivering of possession to respondent
after allotment, was of no consequence, in as much as, physical handing over of plot in
question, was subject to completion of certain formalities which could only be done by
concerned functionaries of District Allotment Committee. Lapse of the Department in not
handing over possession of plot in question, after completion of formalities could not be
equated to that of wilful default. High Court , thus, had rightly decreed respondents suit
and same could not be interfered with in exercise of appellant Jurisdiction. P.L.J.2001 SC
139 = P.L.J.2001 SC 443.
Averment in plaint to the effect that property in question was Evacuee Trust Property,
would by itself divest plaintiff of any interest or right therein. Plaintiff as Notified Officer
had very limited scope of Jurisdiction and could not claim to be custodian of all
Government lands and properties. Averments in plaint did not show any legal character or
right in plaintiff to maintain suit for declaration. Plaintiff, for maintaining any proceedings
for declaration in suit must show existence of statute or character conferred by law which
was wanting in suit. Plaint was thus, rejected for lack of legal character or status in plaintiff
to maintain suit for declaration, P.L.J.1997 Kar. 861 = 1997 MLD 2444.
Confiscation of property by Nawab of Dir in 1937 by way of punishment and expulsion of
predecessors of petitioners of charge of murder. Declaration by Govt. of N.W.F.P. to the
effect that disputed property was state property. Admittedly, suit land was situated within
limits off Malakand Agency and, therefore, it was neither state property of Dir nor could it
be confiscated by Ex-Nawab of Dir as he was devoid of territorial Jurisdiction. It was
ridiculous ,to assume that land was situated in District Dir. Learned District Judge was
Justified in reversing finding of 'learned trial Court on crucial issue as to, location of
disputed property. High Court was, therefore, right in not interfering with finding on
material question. P.L.J.1997 SC 1403 = 1997 SCMR 1620:
Declaration sought for under S.42 of Specific Relief Act, 1877, must relate to title or to any
legal character or to any right as to any propertySaid suit would fall under S.7(iv)of Court
Fees Act, 1870, read with Sched. II, Art.17(IIl) of said Act--Where specific relief claimed in
a declaratory suit was either surplusage or consequential relief same would flow from
original relief of declaration claimed in plaint and suit would thus fall under Sched. II,
Art.17(iii) of Court Fees Act, 1870, but if consequential relief was not outcome of original
declaratory relief then suit would fall out of ambit of abovesaid provisions of law--Plaintiff
in his suit had asked for a declaration to the effect that he was owner in possession of suit
land and had prayed for a further relief that gift deed and sale-deed were illegal and
ineffective on his right, said further relief would flow from declarationSaid suit would fall
under S.7(iv)of Court Fees Act, 1870 read with Sched. II, Art. 17(111) of the said Act.
2000 M L D 1611 Miss Nasim Akhtar v. Muhammad Sabeel and another PLD 1991 Azad J &
K 66 ref.
Evidence brought on record clearly proved that petitioners/plaintiffs were in possession of
disputed land as tenants at will. Beside referring oral evidence, reference was also made to
relevant-Rev.-record-particularly-to,-Jamabdndi,-where petitioners/plaintiffs were recorded
as tenants at will in column of tenants as against column No. 3 whereas
respondents/defendants have been recorded as owners. Oral evidence brought on record
did not support contention of petitioners/plaintiffs that they were actually holding land in question as its owners. Contention that they had purchased property in question for
consideration is not borne out from any evidence. On contrary, mutation entered in respect
of alleged transaction was later on cancelled when objected to from other side. Petitioners
could not point out that there was bona fide transaction of sale and purchase between
parties as alleged in plaint. Petition being meritless is accordingly dismissed in limine.
P.L.J.1998 Lah. 894 = 1948 CLC 1423.
Execution of general power of attorney and mutation of sale challenged through suit for
declaration as being result of fraud mis-representation, collusiveness, without lawful
authority, illegal and ineffective on rights of plaintiffs. Plaintiffs suit .was'dismissed by Trial
Court while the same was decreed by Appellate Court. Validity. Execution of power of
attorney having been denied by plaintiff, burden to prove the same would shift to
defendant who had got benefit out of that document and was beneficiary of the same.
Alleged attorney was close relative of beneficiary of alleged sale. Person who had signed
receipt of loan as witness had admitted that the same was scribed by his clerk and that no
consideration/money was passed in his presence. Scribe of receipt also admitted that no
money was passed in his presence. Scribed though admitted to have written receipt of
money, yet he had not signed that document. One of two marginal witnesses having not
been produced, document in question, would not be deemed to have been proved in
accordance with Arts. 17 and 79 of Qanun-eShahadt Order, 1984. Marginal witnesses of
power, of attorney having not been produced execution of power of attorney was not
proved. Sale in question, on basis of invalid power of attorney was thus, without lawful
authority and mutation of sale on basis thereof, was illegal and void, P.L.J.2000 Lah. 343 =
2000 MLD 1117.
Whether relief of possession could be given by High Court. Respondent, throughout
proceedings, agitated that he was dispossessed from properties during pendency of
proceedings and that he should be put back in possession. Appellant was fully aware of
claim of respondent, regarding possession of suit properties. Omission to claim possession
specifically in suit, was a technical lapse. Learned Judge in Chambers was fully competent
to treat application under Section 151 C.P.C. as cross-objections in appeal of appellant.
Learned Judge in chambers rightly allowed amendment of plaint adding prayer for
possession, but legal implications were not taken into consideration by learned Judge in
chambers. As result of amendment, valuation pf suit went beyond Rs. 200,000/- and
appeal should have been heard by Division Bench. Appeal accepted and case remanded to
High Court for decision of appeal by Division Bench.-P.L.J.1994 SC 386 = 1994 SCMR 1555
= 1994 PSC 996.
It ..is clear from mutation of redemption of land that appellants have sold their land to
respondents and mortgage money was paid by respondents. Findings recorded by trial
court, were reversed by first appellate court for valid reasons. Primary relief sought by
appellants being of declaration, High Court has discretion to refuse relief in view of clear
provisions of Section 42 of Specific Relief Act even if case is proved. P.L.J.1995 Lak. 172 =
1995MLD 1042.
S. 53-A. of Transfer of Property Art, 1882 makes it clear that it applied only to transfer of
an immovable property made by a writing signed by the vendor himself or on his behalf.
Disputed land was already in possession of petitioner-defendant No. 2 being a mortgagee.
Defendants did not deny contents of relevant para No. 5 in this regard in written
statement. Petitioners-defendants raised no objection about form of suit Or same being
barred by law in written statement. So, suit of plaintiff is not hit by provisions ofS. 53-A of
Transfer of Property Act or S. 42 of Specific Relief Act.-P.L.J.1998 Lah. 939 = 1998 CLC
1104.
*Defendants who were cousins of plaintiff and were cultivating his land, on basis of forged
and fabricated agreement to sell and power of attorney in collusion with another defendant
got land owned by plaintiff mutated in their favour in absence of plaintiff---Plaintiff in his suit denied execution of agreement of sale in favour of defendants and execution of power
of attorney in favour of other defendant and sought declaration that said documents be
declared to be illegal and void and that plaintiff was owner of land in dispute and had not
sold land to the defendants---Suit was decreed by Trial Court, but on filing appeal
Appellate Court dismissed the suit---Validity---Power of attorney on basis of which land of
plaintiff was got mutated in names of defendants and execution of which was denied by
plaintiff, was not even produced on record and no explanation for the omission, was given
by defendants---Defendants had claimed that power of attorney being registered one was a
public document and its certified copy was admissible in evidence--Contention was repelled
because under Art.85(5) of Qanun-e-*Shahadat, 1984 only such registered document
could be a public document, execution whereof was not disputed, whereas plaintiff had
totally denied the execution of the power of attorney---No evidence whatsoever had been
led by defendants to prove proceedings of mutation---Appellate Court below was not
justified to hold that since mutation stood incorporated in Revenue Record same enjoyed a
presumption of correctness and need not be proved--*If mutation was incorporated in
Revenue Record, defendants claiming benefit thereunder were not absolved of their
obligation to prove the same as a fact---Judgment and decree passed by Appellate Court
being not based on any evidence and having been passed in. exercise of jurisdiction not
vesting in it, could not sustain---High Court set aside judgment of Appellate Court and
restored the judgment and decree of Trial Court in circumstances. 2001 C L C 155
Muhammad Ibrahim v. Mst. Basri and others 1988 SCMR 96; Muhammad and others v.
Sardul PLD 1965 Lah. (W.P.) 472; Abdul Majeed and 6 others v. M. Subhan and 2 others
1999 SCMR 1245 and Allah Dino and 2 others v. Muhammad Umar and others 1974 SCMR
411 ref.
Plaintiff challenged inheritance mutation of deceased claiming 3/4th share therefrom---Trial
Court decreed the suit---Appellate Court dismissed the suit, which judgment was upheld by
High Court in revision---Validity---Evidence adduced by plaintiff to prove that he was a
collateral of deceased was too deficient to establish his alleged relationship---Both
witnesses examined by plaintiff were strangers as the former about two years ago had
taken up residence in the village, where disputed land was situated, whereas the latter's
village was situated at a distance of 10/15 miles from plaintiff's- village---Plaintiff had not
examined any person having special knowledge about his relationship with
deceased--*Pedigree-table neither linked the plaintiff in any manner with deceased nor
same had been proved in accordance with law---Plaintiff's claim had not been established
on record---Impugned judgment did not warrant interference--* S. C. dismissed the
petition and refused to grant leave to appeal. 2002 S C M R 1355
Plaintiff challenged registered sale-deed executed by their deceased father in favour of
defendants on the ground of same being forged---Trial Court decreed the suit--*Appellate
Court .set aside the decree and dismissed the suit, which judgment was upheld by High
Court in revision---Validity---Registered sale-deed had been executed on 17-8-1963,
whereas plaintiffs had filed suit on 17-3-1984---Such inaction on the part of plaintiffs for
about 20 years went a long way to attach sanctity to sale-deed---Possession of
respondents over disputed land amply supported the authenticity of registered sale-deed,
thus, non-examination of its attesting witnesses was not fatal---Plaintiffs' witness had
admitted that thumb-impression on sale-deed appeared to be that of their
father---Plaintiffs could not make mileage from report of finger expert as thumb-impression
of their father affixed on disputed power of attorney had been sent to finger expert for
comparison with his thumb-impression on sale-*deed---No concrete instance of misreading
or non-reading of evidence had been highlighted by plaintiffs---Supreme Court dismissed
the petition and refused to grant leave to appeal. 2002 S C M R 1391
Revisional jurisdiction, exercise of---Suit was resisted by defendant on grounds that
identity of suit property was in dispute and that defendant had claimed title in respect of
suit property by virtue of inheritance and on basis .of will--*Validity---Full description of
suit. property had been given and identity of property had not been disputed by defendant
either before Trial Court or before Appellate Court---Such controversy could not be urged
at revisional stage---Defendant could not produce any document to prove his title in suit
property by virtue of inheritance or on basis; of alleged Will---Plaintiff on the contrary had
succeeded in establishing her title in property resting on registered
instrument---Presumption as to genuineness, .correctness and authenticity of registered
documents under Arts.85(5) & 129of Qanun-e-Shahadat, 1984 was not dispelled by
defendant and oral assertion was not sufficient to rebut registered documents produced by
plaintiff in proof of her title in respect of suit property---Suit for possession and declaration
was rightly decreed by Trial Court and Appellate Court---Concurrent findings of Courts
below could not be interfered with in revisional jurisdiction of High Court when no illegality
was pointed out in concurrent finding of Courts below. 2002 M L D 1397 Moinuddin Paracha
v. Sirajuddin Paracha 1994 CLC 247; Muhammad Hussain v. Waheed Ahmed 2000 MLD
281 and Syed Akhtar Hussain Zaidi's case 1988 SCMR 753 ref.
Plaintiffs claimed ownership of land in question on the basis of agreement of sale executed
by predecessor-in-interest of defendants in favour of their father claiming that they
remained in possession of land as its owners after the death of their father---Said
agreement of sale had been challenged by defendants after about forty-two years of its
execution---Document was written on a stamp paper of rupee one of "Dogra Regime"
which contained no prima facie evidence of forgery, but appeared to be perfectly genuine
document---If a document which was more than thirty years' old had been produced from
proper custody, Court, under Art. 100 of Qanune-e-Shahadat, 1984 could presume the
same to be genuine---Agreement of sale, in circumstances, was rightly held genuine by
Courts below. 2001 M L D 493 Tikamdas and another v. Abdul Wali and 7 others PLD 1968
SC 241 and Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others 1999 MLR
824 ref.
Filing of application by Respondents Nos. 1 to 4 after closure of petitioners, evidence for
comparison of thumb impressions of petitioner with that of report of patwari on daily dairy
& mutation. Rejection order passed by trial court upheld in appeal. Constitutional petition.
Onus of issue proving transaction to be bona fide against lady plaintiffs who claimed to be
parda Nashin ladies is heavily on petitioner/defendant. If he was of view that those thumb
impressions were actually affixed by Respondents/plaintiffs, then he should have moved
application much earlier instead of waiting for stage of his evidence. Even otherwise, he
has not put any witness so far in witness box to put his own case by calling patwari and
Rev. officials, but had relied upon daily diary and sanctioned mutation respectively- Had it
been shown that thumb-impressions affixed thereon belonged to plaintiffs/respondents,
then question for comparison would have arisen. At this stage, when impression have
already been denied from very. beginning, petitioner/defendant cannot be allowed
premium over his adversary which would tantamount to creation of evidence instead of
examining evidence relied upon in list of reliance. Party cannot be allowed to come up with
piece-meal objections at. every stage of case which is yet pending in CJourt of competent
Jurisdiction awaiting final decision in accordance with law. Constitutional Jurisdiction in
such matters cannot be availed till case is finally decided. All interim orders, if passed to
prejudice of any party, would also merge in final Judgment and could be assailed in
accordance with law at appropriate stage in competent forum. P.L.J.1999 Lah. 1242.
Petitioner claiming title to land in question, on basis of inheritance. Petitioners suit on such
plea was dismissed by Courts below. Evidence produced by petitioner could not establish
that he was the son of propositus, the same rather established otherwise. Birth certificates
of children of petitioner relating to years 1963, 1966, 1971, 1974, 1979 and 1987 recorded
after the death of propositus by three different chowkidars showed parentage of petitioner
to be different than that claimed by him. Two Courts below had dismissed petitioner, claim
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